Woodgate in his capacity as Deed Administrator of Oneoz Pty Ltd (subject to a deed of company arrangement) v Brown

[2021] NSWSC 508

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Woodgate in his capacity as Deed Administrator of Oneoz Pty Ltd (subject to a deed of company arrangement) v Brown [2021] NSWSC 508

Hearing dates:

30 April 2021

Date of orders:

30 April 2021

Decision date:

30 April 2021

Jurisdiction:

Common Law

Before:

Garling J

Decision:

(1) For the avoidance of doubt, and for the promotion of the just, quick and cheap resolution of the real issues in the proceedings, grant leave to Matthew Anstee, pursuant to s 23 of the Supreme Court Act 1970 (NSW) to enforce the judgment in this matter entered on 9 September 2020 against the defendant, Shane John Brown, in the sum of $1,256,193.73.

(2)   Direct the applicant on the Motion to provide a copy of this judgment to the Official Receiver at the Australian Financial Security Authority.

Catchwords:

CIVIL PROCEDURE – Applicant is prevented by the Australian Financial Security Authority from enforcing a monetary judgment without leave of this Court – Leave of this Court is not required to enforce a monetary judgment – Overriding purpose of the Court – Just, quick and cheap resolution – Leave is granted

Legislation Cited:

Bankruptcy Act 1966

Civil Procedure Act 2005 (NSW)

Supreme Court Act 1970

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Not Applicable

Texts Cited:

Not Applicable

Category:

Procedural rulings

Parties:

Giles Geoffrey Woodgate in his capacity as Deed Administrator of Oneoz Pty Ltd (P)
Shane John Brown (D)
Matthew Anstee (Applicant)

Representation:

Counsel:
No Appearance (P)
No Appearance (D)
H Woods (Applicant)

File Number(s):

2020/223876

Publication restriction:

Not applicable

EX TEMPORE Judgment

1. By Notice of Motion filed 29 March 2021 the applicant, Mr Matthew Anstee, seeks the following order:

“Order pursuant to section 135 of the Civil Procedure Act 2005, section 23 of the Supreme Court Act 1970, or the Court's inherent jurisdiction, that leave be granted to Matthew Anstee to enforce the judgment debt ordered and entered by the Court in these proceedings on 9 September 2020 in favour of the plaintiffs against the defendant for the sum of $1,256,193.73 inclusive of costs."

An Effective Assignment

2. From the evidence relied upon in support of that Motion, I am abundantly satisfied that Mr Anstee is the assignee of a judgment debt in the sum of $1,256,193.78 (“the judgment debt”) pursuant to a Deed of Assignment (“the Deed”) entered into between the plaintiffs and him which is dated 14 January 2021.

3. I am also well satisfied that he has complied with all of his obligations under the Deed and that, accordingly, there has been an entirely effective assignment of the judgment debt.

4. I am also satisfied that Notice of that Assignment has been given in writing to the judgment debtor, because that Notice was served personally on him on 4 February 2021 and, as well, had been served on him by post to his last known address on 21 January 2021.

Asserted Need for Leave

5. The applicant's Notice of Motion is brought because, as he was entitled to do, he sought the issue of a bankruptcy notice. In an unsigned letter sent by email from an unidentified person at the Australian Financial Security Authority (“the Authority”), the applicant's solicitor was informed that the Bankruptcy Notice submitted by him on behalf of the applicant, Mr Anstee, could not be accepted or processed due to the following reason:

“Other-1 - I refer you to Official Receivers Practice Statement 6, ‘Applying for a Bankruptcy Notice’ (page 8 assigned debts);

“Please provide evidence that the assignee has obtained leave of the Court to enforce the judgment. Evidence of leave of the Court must be uploaded along with the sealed and/or signed by the Court assignment of the debt document and judgment as one PDF...” ”

6. Other typographical errors in the application are drawn to attention. The applicant was informed that he could resubmit his appropriately revised application within the nominated period of time.

Official Receiver Practice Statements

7. The Practice Statement to which reference was made in that correspondence includes this paragraph:

“2.33 The courts have recognised that the assignee of a debt on which a judgment has been obtained can be a person to which paragraph 40(3)(d) [of the Bankruptcy Act] applies. However, in order to demonstrate that the person is 'for the time being entitled to enforce' the judgment, there must be no barriers to that enforcement. Where the leave of the Court is required before the person can enforce the judgment, that leave must be obtained before paragraph 40(3)(d) can apply...”

8. I have assumed the reference in the Practice Statement to "paragraph 40(3)(d)" is in fact a reference to s 40(3)(d) of the Bankruptcy Act 1966 as passed by the Commonwealth Parliament.

9. Paragraph 2.35 of the Practice Statement casts some further light on paragraph 2.33. It says:

“2.35 In those locations where the Uniform Civil Procedure Rules apply, an assignee may require the leave of the Court before enforcement of the debt...”

10. The Practice Statement (in paragraph 2.36) indicates that the Official Receiver may require evidence that an assignee has the leave of the court.

11. It is necessary to note that no part of Official Receiver Practice Statement 6 actually imposes a requirement for the obtaining of leave to enforce a judgment. Rather, it notes that if leave is required, then it must be obtained first and that evidence of leave may be required.

Is Leave Required to Enforce the Assigned Judgment Debt?

12. Counsel appearing for the applicant has not been able to identify any provision of the Civil Procedure Act 2005 (NSW) or of the Uniform Civil Procedure Rules 2005 (NSW) which require his client to obtain the leave of this Court before proceeding to enforce a money judgment. I know of no such provision. There are provisions which require an applicant for enforcement to obtain the leave of this Court, but they do not apply to a money judgment, nor do they apply to this judgment.

13. It is astonishing to me that the applicant is being prevented from enforcing his debt by an unnamed individual of the Australian Financial Security Authority, in circumstances where an asserted requirement is that he must obtain the leave of the Court. This asserted requirement assumes something to be the fact when it is not. It needs to be clearly stated - the applicant does not require leave of this Court to enforce a money judgment, including the judgment which he took as a lawful assignment.

Can the Court Grant Leave?

14. I am in some doubt in all these circumstances that this Court has the jurisdiction to grant the applicant leave to enforce the judgment. After all, if there is no requirement for leave to be granted and no specific Rule of Court providing for leave to be granted, there must be considerable doubt as to that the basis upon which this Court can grant leave.

15. For example, would the Court be obliged to ensure that any party effected by an application for leave be notified? Would a debtor be entitled to, on such an application, suggest that the debt is not owed? These are all matters for which there is no obvious answer. They are certainly not matters which are consistent with the overriding purpose set out in s 56(1) of the Civil Procedure Act.

Discernment

16. I was initially inclined to decline to make the order sought by the applicant because there is no need for it and ordinarily courts do not make orders for which there is no need.

17. Having re-read the material placed before me and, in particular, what seems to me to be a requirement for leave of this Court to be obtained which can only be borne out of ignorance, I have decided that the best way in which this application can be dealt with is by the grant of leave to enforce the judgment pursuant to s 23 of the Supreme Court Act 1970, which provides this Court with a plenary jurisdiction to deal with all matters arising in New South Wales.

18. Such a grant is made in order to avoid the applicant being trapped within the artificial constraints of an ignorant bureaucracy, and in order to ensure that enforcement of this Court's judgment is not being delayed and rendered ineffective to by such a bureaucracy that I am persuaded that, to the extent necessary, there should be a grant of leave.

Orders

19. Accordingly, I make the following orders

1. For the avoidance of doubt and for the promotion of the just, quick and cheap resolution of the real issues in these proceedings, I grant leave to Matthew Anstee, pursuant to s 23 of the Supreme Court Act 1970 (NSW) to enforce the judgment in this matter entered on 9 September 2020 against the defendant, Shane John Brown, in the sum of $1,256,193.73.

2. I direct the applicant on the Motion to provide a copy of this judgment to the Official Receiver at the Australian Financial Security Authority.

**********

Amendments

10 May 2021 - Typographical error on coversheet

Decision last updated: 10 May 2021